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ANALYSIS OF FEBRUARY 24, 2009 CAV OPINIONS

[Posted February 24, 2009] For the third week in a row, we get three published opinions from the Court of appeals. All three of today’s rulings are in the field of criminal law, and (I’m going to ruin the suspense here) all three end badly for the appellants.

Last year, the Supreme Court ruled, in Glenn v. Commonwealth, that the police could search a backpack found inside a house, after they got the consent of the homeowner to search the house. Today, in Vaughan v. Commonwealth, the Court of Appeals extends that doctrine to a backpack found in the back seat of a car.

Vaughan was a passenger when his driver was pulled over for that sublimely innocuous moving violation, a burned-out tail light. As so often happens, the officer’s workload increased slightly when he discovered that the driver had a suspended license. After writing up the driver for the two traffic violations, the officer delicately asked if there was anything illegal in the car. “Why, no,” the driver replied. “How ‘bout I just check and see?” the officer responded. The driver invited him to do as he pleased. When Vaughan got out of the car, he left a backpack on the seat.

The officer asked who the backpack belonged to. Vaughan said that it was his bag, and “I’ll take responsibility for it.” That’s somewhat ambiguous language, but in today’s analysis, the court rules that the officer reasonably interpreted it to mean that Vaughan would answer for whatever the contents were. Those contents, alas, included cocaine.

The first issue in this case is whether the driver’s consent to the search of the car was sufficient to include consent to search someone else’s backpack. The Glenn ruling last year confirmed that unless the officer has reason to know that the pack doesn’t belong to the person giving the consent, then he has the green light to search it. But how about this situation, where another person claims to own it?

Vaughan ’s defense crumbles because he essentially did nothing while the officer looked through the bag. The Court of Appeals quotes a 2006 US Supreme Court decision that had held that “if the search is otherwise objectively reasonable, a potential objector who raises no objection to the search when he has the opportunity to do so ‘loses out’.” Accordingly, the trial court appropriately denied Vaughan’s motion to suppress, so the conviction is affirmed.

The next case is one of those rulings that’s going to sound like an obvious conclusion, but the appellant’s contention is ingenious enough that it requires a detailed refutation by the court (and a published opinion, so that no one else can try this approach). The case is Ratliff v. Commonwealth, and involves a driver who was under the influence of drugs while behind the wheel.

There’s no question that the gendarmes got the right person; Ratliff was admittedly the person who crossed into oncoming traffic and clipped a motorcycle, seriously injuring two people. State law makes it a felony to cause serious injury by driving while intoxicated, so Ratliff was staring at prison time. But her lawyer noted that intoxicated, as defined in the Alcoholic Beverage laws (Title 4.1 of the Code) doesn’t specifically include being under the influence of drugs; it deals with consumption of alcohol. Ratliff’s blood test showed that she hadn’t been drinking, so her lawyer contended that the statute didn’t apply to her.

No dice, the Court of Appeals holds today. That may be the definition in the ABC laws; but it doesn’t control the interpretation under Title 18.2 (Crimes). And those statutes, read in their entirety, clearly encompass intoxication by drug consumption.